Stormy Daniels court filing: Michael Cohen trying “to soil Mr. Avenatti” (Updated)

Stormy Daniels court filing: Michael Cohen trying “to soil Mr. Avenatti” (Updated)

We reported previously on the court filing by Michael Cohen’s attorneys objecting to Michael Avenatti appearing in the case for Stephanie Clifford (aka Stormy Daniels).

Avenatti is required to submit an application for admission pro hac vice, meaning he seeks admission for the purpose of the case since he is not otherwise admitted to the bar of the U.S. District Court for the Southern District of New York. Such applications usually are routinely granted.

Cohen objects that before the court rules on the application, Avenatti should be required to disclose how he obtained banking records regarding Cohen and how he disclosed those record, as we discussed in Michael Cohen lawyers ask court to require Michael Avenatti to reveal source of bank records, quoting Cohen’s filing (emphasis added):

“… The Court has not issued an order with a briefing schedule for the motion to intervene or Mr. Avenatti’s pro hac vice application, but we now submit this opposition to Mr. Avenatti’s pro hac vice application for the following reasons: (1) yesterday Mr. Avenatti published numerous incorrect statements regarding Mr. Cohen while his pro hac vice motion is pending before the Court; (2) Mr. Avenatti is apparently in possession of and has published information from some
of Mr. Cohen’s actual bank records, and Mr. Cohen is concerned that Mr. Avenatti has no lawful basis to possess those materials; and (3) Mr. Avenatti has made numerous incorrect statements to the public in an apparent attempt to prejudice and discredit Mr. Cohen on this matter for which he seeks admission….

While Mr. Avenatti has published numerous incorrect statements regarding Mr. Cohen, he appears to be in possession of some information from Mr. Cohen’s actual bank records. Mr. Avenatti has published information from these records, such as the identities of and payments made by Mr. Cohen’s business clients, such as AT&T and Novartis. Ex. A at 3-4. These business clients have not been previously identified in public. We understand that the Government now possesses these records as a result of the seizures executed on April 9, 2018, and prior seizures, but we are not aware of any lawful attempts by Mr. Avenatti to obtain these records. We note that prior to this submission, the Inspector General of the U.S. Department of Treasury initiated an investigation into whether these bank records were “improperly disseminated.”….

We have no reason to believe that Mr. Avenatti is in lawful possession of these bank records. If Mr. Avenatti wishes to be admitted pro hac vice before this Court, he should be required to explain to this Court how he came to possess and release this information. The details of when Mr. Cohen was paid by these business clients – whose names had not previously been made public – have no relation to the litigation in which he represents Ms. Clifford or any purported reasons he may have to appear before this Court.”

At the time of Cohen’s objection, Avenatti had not yet filed his application for admission, but has done so now. The Application (pdf.)(full embed at bottom of post) says nothing about Cohen’s objection or the bank records.

Avenatti, on behalf of Clifford, also filed a response to the objection. That Response (pdf.)(full embed at bottom of post) does not provide the information Cohen requested, and instead, asserts that Cohen is trying “to soil” Avenatti with misleading or false accusations (emphasis added):

….Mr. Cohen’s submission does not specify what legal wrong Mr. Cohen alleges was done that would justify the extraordinary remedy of denying a pro hac vice admission—applications that are routinely granted as a matter of course. And remarkably, he fails to cite any legal authority that would support the denial of pro hac vice admission. In fact, Mr. Cohen does not cite the Court to any legal authority at all.1 Indeed, Mr. Avenatti is clearly protected by First Amendment rights of free speech to publish information on matters that, without serious dispute, are of the utmost public concern. See, e.g., Lane v. Franks, 134 S. Ct. 2369, 2377 (2014) (“Speech by citizens on matters of public concern lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). Therefore, Mr. Cohen’s submission is completely devoid of merit.

[1 Mr. Cohen’s citation to various unsubstantiated media reports, which are themselves hearsay, hardly qualifies as sufficient evidence to deny Mr. Avenatti’s application.]

In fact, in less than 48 hours after it was published, more than 99 percent of the payments to Mr. Cohen listed in the report were proven accurate either by other reporting or by the entities themselves that made the payments. [See Exs. 2-5.] ….

That Mr. Cohen may be dismayed that these damaging revelations have come to light and have been proven true does not come remotely close to justifying a denial of Mr. Avenatti’s right to appear before this Court. As discussed in her motion to intervene, Ms. Clifford has very important and legitimate interests in protecting her records. She should not be denied counsel from representing and advancing those interests based on Mr. Cohen’s embarrassment resulting from discomforting information being made public.

* * *

In sum, it is difficult to conclude that Mr. Cohen’s filing is anything but a highly improper attempt to soil Mr. Avenatti and unnecessarily lure and entangle this Court into Mr. Cohen’s elaborate campaign to now discredit Mr. Avenatti.

The claim that critics of Avenatti are trying to soil him seems to be a recent Avenatti theme, including threats to sue journalists. Avenatti’s antics certainly create the appearance that he is a political actor more so than a legal advisor.

The NY Times, which the judge almost certainly reads, has described Avenatti as the Ringmaster in the Michael Cohen Circus.

For more than a month now, the investigation of Michael D. Cohen, President Trump’s longtime personal lawyer, has been a spectacle, a garish pageant of money, sex and politics unfolding both in court and in the court of public opinion.

And if anyone can be thought of as the ringmaster in this noisy legal circus, it is Mr. Cohen’s chief nemesis, Michael Avenatti, the lawyer for the pornographic film star Stephanie Clifford.

Avenatti’s theatrics might not otherwise preclude him from appearing in the case if it were not for the fact that the case involves preserving the secrecy and confidentiality of records. Avenatti may have a 1st Amendment right to speak about important public issues, but he doesn’t have a right to admission pro hac vice in a case in which preserving the confidential nature of information is paramount.

Cohen’s request was rather limited, seeking to have Avenatti disclose what he did with the bank records before the court ruled on the application for admission.

I’m not sure Avenatti’s contentious and boasting response helps his cause.  Avenatti seems so proud of the fact that he disclosed the banking information, that it might just cause the court to require the disclosure of how he got the bank records before ruling on whether Avenatti can appear in the case.

We should find out soon as the status conference for which he seeks admission is May 24.

UPDATE:

Ronan Farrow at The New Yorker reports that he has spoken with the person who leaked Cohen’s banking records (not clear if that includes leaking directly to Avenatti), and that person was in law enforcement. The person is not named.

The Court also has given Cohen two days to submit legal authorities backing up his position:

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Michael Cohen v. USA – Stephanie Clifford Response Re Objection to Michael Avenatti Pro Hac Vice by Legal Insurrection on Scribd

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Michael Cohen v. USA – Michael Avenatti Pro Hac Vice Application by Legal Insurrection on Scribd

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